Case Number: 01-96-01253-CV 10/18/1999 Case stored in record room 10/18/1999 Notice sent to Court of Appeals 07/29/1999 Motion for Rehearing - Disposed Overruled 07/06/1999 Amicus Curiae Brief received 07/01/1999 Amicus Curiae Brief received 06/25/1999 Motion for Rehearing - Filed 06/25/1999 Motion for Rehearing forwarded 06/10/1999 Petition for Review disposed proceeding denied 06/07/1999 Amicus Curiae Brief received 05/13/1999 Petitioner's reply brief 05/13/1999 Notice requesting filing fee 05/06/1999 Amicus Curiae Brief received 05/03/1999 Amicus Curiae Brief received 04/30/1999 Amicus Curiae Brief received 04/20/1999 Case forwarded to Court 04/13/1999 Response to Petition for Review filed 04/01/1999 Response to Petition for Review filed 04/01/1999 Response to Petition for Review waived 03/31/1999 Response to petition, motion, etc. due 03/31/1999 M/E/T to file response disposed of Granted 03/30/1999 certification (various) in case received 03/29/1999 Motion for Extension of Time filed 03/29/1999 Notice of rehearing, etc. 03/29/1999 Phone call from Clerk's Office 03/23/1999 Previous Order of the Court withdrawn 03/18/1999 Petition for Review disposed Filed document is struck by the court 03/18/1999 Returned document/s to attorney. See Remarks. 03/18/1999 mo to extend length of petition, response or reply disposed of Overruled 03/18/1999 mo to extend length of petition, response or reply disposed of Overruled 03/18/1999 Miscellaneous motion disposed. See Remarks. Overruled 03/02/1999 mo to extend length of petition, response and reply 03/02/1999 mo to extend length of petition, response and reply 03/02/1999 Miscellaneous motion filed. 03/02/1999 Petition for Review filed OPINION ON REHEARING
Neeble filed a motion for rehearing, which we deny. We write only to respond to the dissenting opinion on Neeble's motion for rehearing en banc.
The dissent argues we held that unnecessary surgery is not harmful. We have not. A complaint that a physician performed unnecessary surgery can form the basis for a cause of action based on either negligence (misdiagnosis or mistreatment) or battery. Misdiagnosis or mistreatment are negligence issues, not informed consent issues. Patton v. Saint Joseph's Hosp.,887 S.W.2d 233, 247 (Tex.App. — Fort Worth 1994, writ denied). A general negligence question was submitted to the jury, which found that Neeble was negligent, not the doctors.
The dissent also argues we held in our discussion of points of error 14 and 15 that submission of the negligence question somehow encompassed the "issues" of battery (an intentional tort), unnecessary surgery, or informed consent. We instead held that under broad-form question submission Neeble was not entitled to the separate questions he tendered.
We deny the motion for rehearing.
A majority of the justices of the Court voted to overrule the motion for rehearing en banc.
Justice O'CONNOR dissenting from the overruling of the motion for rehearing en banc. Dissenting opinion attached. *Page 391